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COMMONWEALTH PENNSYLVANIA v. MACK CEASAR DANCER (01/27/75)

decided: January 27, 1975.

COMMONWEALTH OF PENNSYLVANIA
v.
MACK CEASAR DANCER, APPELLANT



COUNSEL

Daniel H. Shertzer, Lancaster, for appellant.

Roland L. Buckwalter, Dist. Atty., Lancaster, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 460 Pa. Page 97]

OPINION OF THE COURT

This appeal from a denial of relief under the Post Conviction Hearing Act*fn1 requires us to determine whether a defendant represented on direct appeal by an attorney other than his trial counsel waives his claim of ineffective assistance of trial counsel by failing to raise that issue on direct appeal. In the circumstances of this case, we hold that failure to raise the issue on direct appeal constitutes a waiver.

In 1971, appellant Mack Ceasar Dancer was convicted by a jury of murder in the second degree. Following denial of post-trial motions, Dancer was sentenced to imprisonment of seven and one-half to fifteen years. After sentencing, Dancer discharged his trial attorney, retained new counsel, and appealed to this Court. Dancer did not claim on direct appeal ineffective assistance of trial counsel. We affirmed. Commonwealth v. Dancer, 452 Pa. 221, 305 A.2d 364 (1973).

[ 460 Pa. Page 98]

On July 9, 1973, appellant initiated the present PCHA proceeding and raised for the first time the claim of ineffectiveness of trial counsel. After a hearing at which Dancer's trial counsel testified, the PCHA court denied appellant relief. This appeal ensued.*fn2 We affirm.

Appellant alleges that at a number of critical junctures during trial, his counsel elected to follow alternatives that had no "reasonable basis designed to effectuate his client's interests." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). He therefore claims denial of effective assistance of counsel. See Post Conviction Hearing Act § 3(c)(6), 19 P.S. § 1180-3(c)(6) (Supp.1974). Appellant asserts the most important of these alleged prejudicial trial deficiencies occurred because counsel relied on a self-defense theory despite Dancer's refusal to admit that he had struck the fatal blow. Counsel's utilization of this defense resulted in failure to exploit alternatives that, appellant claims, might have suggested to the jury that the deceased had not been mortally wounded by appellant. This defense also led counsel to refrain from objecting to portions of the court's charge that were premised on the assumption that the victim's death was attributable to Dancer.

Additionally, Dancer claims that counsel erred by 1) failing to request a charge on involuntary manslaughter, 2) failing to request an adequate charge on the possible verdicts, 3) neglecting to object to presumptions of guilt expressed in the charge, 4) failing to adequately develop the self-defense theory, and 5) failing to present evidence of alternative defenses.

The PCHA court refused to consider the merits of all these claims of counsel's ...


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